# National Highway Authority of India & Anr v. Jagpal Singh & Ors

- **Citation:** (2024) 11 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-11
- **Case number:** Matters Under Article 227 No. 11516 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-highway-authority-of-india-anr-v-jagpal-singh-ors-51177
- **Pages:** 11

## Headnote

Civil Law-The Arbitration and Conciliation
Act, 1996 - Section 4 & 36- Jurisdiction for
filing execution case lies with the Judgeship of
Kanpur or Etawah---Dispute is arising out of
acquirement of land of petitioners at District
Etawah, meaning thereby, property and assets
of the petitioners is situated at there, therefore,
even if the office of petitioners is at Kanpur or
arbitration award was pronounced at Kanpur,
that would make no difference in filing of
execution proceeding at Etawah in light of
interpretation made by the Hon'ble Apex Court
and the provision of CPC as well as Act, 1996
occupying the field--- Undisputedly against an
award given at Kanpur, petitioners themselves
have preferred appeal under Section 34 of the
of the Act, 1996 before District Judge, Etawah,
11 All. National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
131
therefore, petitioners acquiesce their right and
their objection is certainly barred by Section 4 of
the Act. (E-15)

List of Cases cited:

## Text

130 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose of vexation or delay or defeating
the ends of justice, A Sessions court may
also take recourse in this regard to the
enabling provision envisaged in Section
312 Cr.P.C. quoted herein before."

52. A perusal of judgment rendered by
Hon'ble the Supreme Court in the case of Dr.
Rajesh Talwar & Anr. versus Central Bureau
of Investigation & Anr. reported in (2014)1
SCC 628 relied upon by learned counsel for
opposite parties also does not indicate any
contrary view being taken. However it only
indicates that criminal Courts are not obliged to
accede to the request made by accused.
However even the said judgment indicates that
trial courts are bound by terms of Section 233
(3) Cr.P.C. to refuse such a request only on the
ground indicated therein.

53. It is a factor required to be kept in
mind that the applicant is facing charges under
Sections 302 and 307 IPC which carry the
maximum sentence of the death penalty. In
such circumstances, widest amplitude is
required to be given to the accused in order to
substantiate his defence. The seriousness of
charge imputed against the applicant cannot be
emphasized enough and therefore he would
have inherent right under Article 21 of the
Constitution of India for his applications to
succeed to the extent indicated herein-above.

54. In view of aforesaid facts and
circumstances and discussion made, the
impugned order dated 17.01.2024 so far as it
rejects application no.92/kha and to the extent it
rejects application No.91Kha is hereby quashed
with regard to the witnesses five, six and for
summoning of the record of affidavit of Photo
Identification Centre.

55. Trial court shall ensure that
process is issued for attendance of
witnesses five and six indicated in the
application no.91Kha as also production
required in terms of application no.
92Kha/1. Expenses for the same shall be
born by the State.

56. Considering aforesaid facts and
circumstances,
the
application
under
Section 482 Cr.P.C. is partially allowed to
the aforesaid extent.
----------
(2024) 11 ILRA 130
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 11516 of 2024

National Highway Authority of India &
Anr. ...Petitioners
Versus
Jagpal Singh & Ors. ...Respondents

Counsel for the Petitioner:
Shiv Kumar Singh

Counsel for the Respondents:
Devansh Misra, C.S.C., Devesh Kumar
Verma

Civil Law-The Arbitration and Conciliation
Act, 1996 - Section 4 & 36- Jurisdiction for
filing execution case lies with the Judgeship of
Kanpur or Etawah---Dispute is arising out of
acquirement of land of petitioners at District
Etawah, meaning thereby, property and assets
of the petitioners is situated at there, therefore,
even if the office of petitioners is at Kanpur or
arbitration award was pronounced at Kanpur,
that would make no difference in filing of
execution proceeding at Etawah in light of
interpretation made by the Hon'ble Apex Court
and the provision of CPC as well as Act, 1996
occupying the field--- Undisputedly against an
award given at Kanpur, petitioners themselves
have preferred appeal under Section 34 of the
of the Act, 1996 before District Judge, Etawah,
11 All. National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
131
therefore, petitioners acquiesce their right and
their objection is certainly barred by Section 4 of
the Act. (E-15)

List of Cases cited:

1. Ge Money Financial Services Ltd., New Delhi
Vs Mohd. Azaz & anr.): 2013 SCC Online AII
13365

2. Sundaram Finance Ltd. Vs Abdul Samad and
Ors.: AIR 2018 SC 956

3. Matter Under Article 227 No. 2704 of 2023
(Bharat Petroleum Corp. Ltd. Mumbai Thru.
Territory Manager, Retail Territory-Gonda Vs
Anoop Kumar Modi)

4. Cheran Properties Ltd. Vs Kasturi and Sons
Ltd. & ors.: (2018) 16 SCC 413

5. Matter Under Article 227 No. 3384 of 2023
(Madhyanchal Vidyut Vitran Nigam Ltd. Thru.
Managing Director Vs M/S Shashi Cable Thru.
Its Authorized Signatory.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Shiv Kumar Singh,
learned counsel for the petitioners, Sri
Devansh Misra, learned counsel for the
respondent Nos. 1 & 2 and learned
Standing Counsel for the respondent No. 3.

2. Brief facts of the case are that land
of respondent Nos. 1 & 2 has been acquired
for widening of National Highway No. 2 at
Maneyamau, Tehsil- Etawah, DistrictEtawah and in light of Section 3G(2) of the
National Highways Act, 1956(hereinafter,
referred to as, 'Act, 1956'), amount of
compensation has been determined. Section
3G(5) of the Act, 1956 also provides that if
either of the parties are not satisfied with
the determination of the amount, on an
application by either of the parties the
amount shall be determined by the
arbitrator to be appointed by the Central
Government.
In
the
present
case,
Additional District Magistrate, Etawah vide
order dated 23.12.2016 has fixed the
amount of compensation. Against that,
petitioners filed arbitration application
under Section 3G(5) of the Act, 1956
before
the
Additional
Commissioner,
Administration, Kanpur Division, Kanpur,
who is the competent authority appointed
by the Central Government. Ultimately, the
final award was passed vide order dated
05.08.2019.
Petitioners
also
filed
restoration application along with delay
condonation application dated 17.10.2019
against the order dated 05.08.2019 and the
same was rejected vide order dated
06.01.2022.
Against
the
said
award,
petitioners have preferred Civil Misc. Case
No. 64 of 2022 under Section 34(3) of
Arbitration
and
Conciliation
Act,
1996(hereinafter, referred to as, 'Act,
1996'), which was also rejected vide order
dated 18.07.2023 by the Additional District
Judge(POCSO Act), Etawah. Against the
order
dated
18.07.2023,
petitioners
preferred Appeal Under Section 37 of
Arbitration and Conciliation Act 1996
Defective No. 652 of 2023, delay was
condoned vide order dated 21.03.2024 and
direction was issued to allot regular number
to Appeal. It is undisputed between the
parties that till date, no stay or interim
order has been passed upon the aforesaid
appeal filed by the petitioner.

3. Now, respondent Nos. 1 and 2 have
preferred execution of award before the
District
Judge,
Etawah,
which
was
transferred to Additional District Judge,
Etawah and numbered as Execution Case
No. 46 of 2023. In the said case, petitioner
has filed objection, numbered as 17Ga
raising the issue of jurisdiction of the court,
which was objected by the respondent Nos.
2 & 3 by filing rebuttal numbered as Paper
No. 18Ga. The objection of petitioners has
132 INDIAN LAW REPORTS ALLAHABAD SERIES
been rejected vide order dated 05.08.2024.
Hence present petition.

4. Sri, Shiv Kumar Singh, learned
counsel for the petitioners submitted that
office of respondent No. 1 is situated at
Kanpur and from there it carries its
business. Further, arbitration also took
place at Kanpur, therefore, Section 36 of
the Act, 1996 and provisions of CPC would
by applicable and jurisdiction of execution
case shall lie with the District Judge,
Kanpur.

5. In support of his contention, he
place reliance upon the judgment of
Hon'ble Apex Court in the matter of
Sundaram Finance Limited Vs. Abdul
Samad and Ors.: AIR 2018 SC 956,
judgment of this Court in the matter of Ge
Money Financial Services Ltd., New Delhi
Vs. Mohd. Azaz & Anr): 2013 SCC Online
AII 13365 and judgment of High Court of
Delhi in the matter of Daelim Industrial
Co. Ltd. Vs. Numaligarh Refinery Ltd.:
MANU/DE/1316/2009.

6. Per contra, Sri Devansh Misra,
learned counsel for the respondent Nos. 1
& 2 vehemently opposed the submission
raised by learned counsel for the petitioners
and submitted that against the said award,
petitioners have preferred Civil Misc. case
No. 64 of 2022 under Section 34(3) of the
Act, 1996, which was rejected vide order
dated 18.07.2023. Once he has filed appeal
before the District Judge, Etawah under
Section 34 of the Act 1996, he acquiesces
the jurisdiction with the District Judge,
Etawah, therefore, in light of Section 4 of
the Act, 1996, now he has waived of his
right to objection. He further submitted that
the very same issue was before the Hon'ble
Apex Court and many other Courts. He
also pointed out that in light of Section 32
of the Act, 1996, arbitral proceeding shall
be terminated by the final arbitral award or
by an order of the arbitral tribunal under
sub-section(2).
In
the
present
case,
undisputedly, arbitral proceeding has been
terminated after pronouncement of award,
therefore, Section 42 of the Act, 1996 about
the jurisdiction would not be applicable for
filing of execution proceeding. He next
submitted that so far as Section 36 of the
Act 1996 is concerned, it is a deeming
provision in light of other provisions of the
Act, 1996 and the interpretation made by
the court, therefore, provision of CPC
would not be applicable in the present case.

7. In support of his contention, he
placed reliance upon the judgment of
Hon'ble Apex Court in the matters of
Sundaram Finance Limited(Supra) &
Cheran Properties Limited Vs. Kasturi
and Sons Limited and Others: (2018) 16
SCC 413, and judgment of this Court in the
matters of Ge Money Financial Services
Ltd.(Supra), Matter Under Article 227 No.
2704
of
2023
(Bharat
Petroleum
Corporation Ltd. Mumbai Thru. Territory
Manager, Retail Territory-Gonda Vs.
Anoop Kumar Modi), Matter Under
Article
227
No.
3384
of
2023
(Madhyanchal Vidyut Vitran Nigam Ltd.
Thru. Managing Director Vs. M/S Shashi
Cable Thru. Its Authorized Signatory.

8. I have considered the submission so
advanced by learned counsel for the parties
and perused the record as well as
judgments relied upon.

9. The facts of the case are undisputed
and the only issue before the Court is, as to
whether jurisdiction for filing execution
case lies with the Judgship of Kanpur or
Etawah, which is a pure legal question,
therefore, with the consent of the counsel
11 All. National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
133
for the parties, petition is being decided at
the admission stage itself without calling
for the counter.

10. Allahabad High Court in the
matter of Ge Money Financial Services
Ltd.(Supra) has taken the view that award
can be executed by the court, in whose
jurisdiction judgment debtor resides, carries
on business or his property is situated. For
execution of arbitral award, issue of
jurisdiction has travelled before different
High Courts and diverse views have been
taken by the Courts. One view is that,
transfer of decree is first to be obtained
before filing of execution before the court,
where the assets are located and another
view is that execution for award can be
filed before the court, where the assets of
the judgment debtor are located and for
that, no transfer decree is required.
Ultimately, the matter went up to Hon'ble
Supreme Court in the matter of Sundaram
Finance
Limited
(Supra).
Relevant
paragraph of the said judgment are being
quoted hereinbelow:

"1. The divergence of legal
opinion of different High Courts on the
1question as to whether an award under
the Arbitration & Conciliation Act, 1996
(hereinafter referred to as the 'said Act') is
required to be first filed in the court having
jurisdiction
over
the
arbitration
proceedings for execution and then to
obtain transfer of the decree or whether the
award can be straightway filed and
executed in the Court where the assets are
located is required to be settled in the
present appeal.

The Conflicting Views:

A. The transfer of decree should
first
be
obtained
before
filing
the
execution petition before the Court where
the assets are located:

B. An award is to be enforced in
accordance with the provisions of the said
Code in the same manner as if it were a
decree of the Court as per Section 36 of
the said Act does not imply that the award
is a decree of a particular court and it is
only a fiction. Thus, the award can be
filed for execution before the court where
the assets of the judgment debtor are
located:

Our View:

6. In order to appreciate the
controversy, we would first like to deal with
the provisions of the said Code and the said
Act.

7. Part II of the said Code deals
with execution proceedings. Section 37 of
the said Code defines the 'Court', which
passed the decree. Section 38 of the said
Code provides as to by which court the
decree would be executed and reads as
under:

"38. Court by which decree may
be executed. - Adecree may be executed
either by the Court which passed it, or by
the Court to which it is sent for execution."

8. Section 39 of the said Code
provides for transfer of decree and reads as
under:

"39. Transfer of decree. - (1)The
Court which passed a decree may, on the
application of the decree-holder, send it for
execution to another Court [of competent
jurisdiction],-

(a) if the person against whom
the
decree
is
passed
actually
and
voluntarily resides or carries on business,
or personally works for gain, within the
local limits of the jurisdiction of such other
Court, or

(b) if such person has no property
within the local limits of the jurisdiction of
the Court which passed the decree
sufficient to satisfy such decree and has
134 INDIAN LAW REPORTS ALLAHABAD SERIES
property within the local limits of the
jurisdiction of such other Court, or

(c) if the decree directs the sale
or delivery of immovable property situate
outside the local limits of the jurisdiction of
the Court which passed it, or

(d) if the Court which passed the
decree considers for any other reason,
which it shall record in writing, that the
decree should be executed by such other
Court.

(2) The Court which passed the
decree may of its own motion send it for
execution to any subordinate Court of
competent jurisdiction.

[(3) For the purposes of this
section, a Court shall be deemed to be a
Court of competent jurisdiction if, at the
time of making the application for the
transfer of decree to it, such Court would
have jurisdiction to try the suit in which
such decree was passed.]

[(4) Nothing in this section shall
be deemed to authorise the Court which
passed a decree to execute such decree
against any person or property outside the
local limits of its jurisdiction.]"

9. One of the relevant provisions,
the effect of which has not been really
discussed in any of the judgments referred
to aforesaid is Section 46 of the said Code
which defines Precepts as under:

"46. Precepts. - (1)Upon the
application of the decree-holder the Court
which passed the decree may, whenever it
thinks fit, issue a precept to any other
Court which would be competent to execute
such decree to attach any property
belonging to the judgment-debtor and
specified in the precept.

(2) The Court to which a precept
is sent shall proceed to attach the property
in the manner prescribed in regard to the
attachment of property in execution of a
decree:

Provided that no attachment
under a precept shall continue for more
than two months unless the period of
attachment is extended by an order of the
Court which passed the decree or unless
before
the
determination
of
such
attachment the decree has been transferred
to the Court by which the attachment has
been made and the decree-holder has
applied for an order for the sale of such
property.

10.The relevance of the aforesaid
provision is that the application of the
decree holder is made to the Court which
passed the decree, which issues the
precepts to any other Court competent to
execute the said decree. As noticed, the
expression "the Court which passed the
decree" is as per Section 37 of the said
Code. We may note at this stage itself that
in the case of an award there is no decree
passed but the award itself is executed as a
decree by fiction. The provisions of the said
Act traverse a different path from the
Arbitration Act, 1940, which required an
award made to be filed in Court and a
decree to be passed thereon whereupon it
would be executable.

11. Now turning to the provisions
of Order XXI of the said Code, which deals
with execution of decrees and orders. In
case a Court desires that its own decree is
to be executed by another court, the
manner for doing so is provided by Rule 6,
which reads as under:

"21 - Execution of Decrees and
Orders

xxxx xxxx xxxx xxxx xxxx

6. Procedure where court desires
that its own decree shall be executed by
another court.- The court sending a decree
for execution shall send-

(a) a copy of the decree;

(b) a certificate setting forth that
satisfaction of the decree has not been
11 All. National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
135
obtained
by
execution
within
the
jurisdiction of the court by which it was
passed, or, where the decree has been
executed in part, the extent to which
satisfaction has been obtained and what
part of the decree remains unsatisfied; and

(c) a copy of any order for the
execution of the decree, or, if no such order
has been made, a certificate to that effect.

12.The manner of presentation of
an application is contained in Rule 11(2) of
Order XXI, which reads as under:

"21- Execution of Decrees and
Orders

xxxx xxxx xxxx xxxx xxxx

11. (2) Written application-Save
as otherwise provided by sub-rule (1),
every application for the execution of a
decree shall be in writing, signed and
verified by the applicant or by some other
person proved to the satisfaction of the
court to be acquainted with the facts of the
case, and shall contain in a tabular form
the following particulars, namely:-

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree; (

d) whether any appeal has been
preferred from the decree;

(e) whether any, and (if any)
what, payment or other adjustment of the
matter in controversy has been made
between the parties subsequently to the
decree;

(f) whether any, and (if any)
what, previous applications have been
made for the execution of the decree, the
dates of such applications and their results;

(g) the amount with interest (if
any) due upon the decree, or other relief
granted thereby, together with particulars
of any cross decree, whether passed before
or after the date of the decree sought to be
executed;

(h) the amount of the costs (if
any) awarded;

(i) the name of the person against
whom execution of the decree is sought;
and

(j)the
mode
in
which
the
assistance of the court is required,
whether-

(i) by the delivery of any property
specifically decreed;

(ii) by the attachment, or by the
attachment and sale, or by the sale without
attachment, of any property;

(iii) by the arrest and detention in
prison of any person;

(iv) by the appointment of a
receiver;

(v) otherwise, as the nature of the
relief granted may require."

13.A perusal of the aforesaid
shows that what is sought to be disclosed is
that the details like the number of suits,
appeal against the decree, etc. find a place,
which really does not have a relevance to
the fiction of an award to be treated as a
decree of the Court for purposes of
execution.

14.We would now like to refer to
the provisions of the said Act, more
specifically Section 36(1), which deals with
the enforcement of the award:

"36. Enforcement. - (1) Where
the time for making an application to set
aside the arbitral award under section 34
has expired, then, subject to the provisions
of sub-section (2), such award shall be
enforced in accordance with the provisions
of the Code of Civil Procedure, 1908 (5 to
1908), in the same manner as if it were a
decree of the court."

The aforesaid provision would
show that an award is to be enforced in
accordance with the provisions of the said
code in the same manner as if it were a
decree. It is, thus, the enforcement
136 INDIAN LAW REPORTS ALLAHABAD SERIES
mechanism,
which
is
akin
to
the
enforcement of a decree but the award
itself is not a decree of the civil court as no
decree whatsoever is passed by the civil
court. It is the arbitral tribunal, which
renders an award and the tribunal does not
have the power of execution of a decree.
For the purposes of execution of a decree
the award is to be enforced in the same
manner as if it was a decree under the said
Code.

15. Section 2(e) of the said Act
defines 'Court' as under:

"2. Definitions.

......... xxxx xxxx xxxx xxxx xxxx

(e) "court" means -

(i) in the case of an arbitration
other
than
international
commercial
arbitration, the principal Civil Court of
original jurisdiction in a district, and
includes the High Court in exercise of its
ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming
the subject-matter of the arbitration if the
same had been the subject-matter of a suit,
but does not include any Civil Court of a
grade inferior to such principal Civil
Court, or any Court of Small Causes;

(ii) in the case of international
commercial arbitration, the High Court in
exercise of its ordinary original civil
jurisdiction, having jurisdiction to decide
the questions forming the subject-matter of
a suit, and in other cases, a High Court
having jurisdiction to hear appeals from
decrees of courts subordinate to that High
Court;]"

16.The
line
of
reasoning
supporting the award to be filed in a socalled court of competent jurisdiction and
then to obtain a transfer of the decree is
primarily based on the jurisdiction clause
found in Section 42, which reads as under:

"42.
Jurisdiction.
-
Notwithstanding
anything
contained
elsewhere in this Part or in any other law
for the time being in force, where with
respect to an arbitration agreement any
application under this Part has been made
in a Court, that Court alone shall have
jurisdiction over the arbitral proceedings
and all subsequent applications arising out
of
that
agreement
and
the arbitral
proceedings shall be made in that Court
and in no other Court."

The
aforesaid
provision,
however, applies with respect to an
application being filed in Court under Part
I. The jurisdiction is over the arbitral
proceedings. The subsequent application
arising from that agreement and the
arbitral proceedings are to be made in that
court alone.

17. However, what has been lost
sight of is Section 32 of the said Act, which
reads as under:

"32.
Termination
of
proceedings.-
(1)
The
arbitral
proceedings shall be terminated by the
final arbitral award or by an order of the
arbitral tribunal under sub-section (2).

(2) The arbitral tribunal shall
issue an order for the termination of the
arbitral proceedings where-

(a) the claimant withdraws his
claim, unless the respondent objects to the
order and the arbitral tribunal recognises a
legitimate interest on his part in obtaining
a final settlement of the dispute,

(b) the parties agree on the
termination of the proceedings, or

(c) the arbitral tribunal finds that
the continuation of the proceedings has for
any other reason become unnecessary or
impossible.

(3) Subject to section 33 and subsection (4) of section 34, the mandate of the
arbitral tribunal shall terminate with the
termination of the arbitral proceedings."
11 All. National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
137

The aforesaid provision provides
for arbitral proceedings to be terminated
by the final arbitral award. Thus, when an
award is already made, of which execution
is sought, the arbitral proceedings already
stand terminated on the making of the final
award. Thus, it is not appreciated how
Section 42 of the said Act, which deals with
the jurisdiction issue in respect of arbitral
proceedings, would have any relevance. It
does appear that the provisions of the said
Code and the said Act have been mixed up.

18. It is in the aforesaid context
that the view adopted by the Delhi High
Court in Daelim Industrial Co. Ltd. v.
Numaligarh Refinery Ltd.12 records that
Section 42 of the Act would not apply to an
execution application, which is not an
arbitral proceeding and that Section 38 of
the Code would apply to a decree passed
by the Court, while in the case of an award
no court has passed the decree.

19. The Madras High Court in
Kotak Mahindra Bank Ltd. v. Sivakama
Sundari & Ors.13referred to Section 46 of
the said Code, which spoke of precepts but
stopped at that. In the context of the Code,
thus, the view adopted is that the decree of
a civil court is liable to be executed
primarily by the Court, which passes the
decree where an execution application has
to be filed at the first instance. An award
under Section 36 of the said Act, is equated
to a decree of the Court for the purposes of
execution and only for that purpose. Thus,
it was rightly observed that while an award
passed by the arbitral tribunal is deemed to
be a decree under Section 36 of the said
Act, there was no deeming fiction anywhere
to hold that the Court within whose
jurisdiction the arbitral award was passed
should be taken to be the Court, which
passed the decree. The said Act actually
transcends all territorial barriers.

Conclusion

20. We are, thus, unhesitatingly
of the view that the enforcement of an
award through its execution can be filed
anywhere in the country where such decree
can
be
executed
and
there
is
no
requirement for obtaining a transfer of the
decree from the Court, which would have
jurisdiction over the arbitral proceedings.

11. While deciding the issue, the Court
has also considered the scope of Section 36
of the Act, 1996 upon which, learned
counsel for the petitioners has placed
reliance. The Court has taken a specific
view that while award passed by arbitral
tribunal is deemed to be a decree under
Section 36 of the Act, 1996 and there was
no deeming fiction anywhere to hold that
the court within whose jurisdiction the
arbitral award was passed, should be taken
to be the court which passed the decree. In
fact the Act transcends all territorial
barriers and lastly the Court has held that
execution may be filed anywhere in the
country, where the decree may be executed
and there is no requirement for obtaining
transfer of decree from the Court.

12. This issue again came up before
Full Bench of Apex Court for consideration
in the matter of Cheran Properties
Limited(Supra) and the Apex Court has
affirmed the view taken in the matter of
Sundaram
Finance
Limited(Supra).
Relevant paragraphs of the said judgment
are bing quoted hereinbelow:

"39. The reliance which has been
sought to be placed on the provisions of
Section 42 of the 1996 Act is inapposite. Dr
Singhvi relied on the decision in State of
West Bengal v Associated Contractors20.
The principle which was enunciated in the
judgment of this Court was as follows:
138 INDIAN LAW REPORTS ALLAHABAD SERIES

"24. If an application were to be
preferred to a court which is not a
Principal
Civil
Court
of
original
jurisdiction in a district or a High Court
exercising original jurisdiction to decide
questions forming the subject matter of an
arbitration if the same had been the subject
matter of a suit, then obviously such
application would be outside the four
corners of Section 42. If, for example, an
application were to be filed in a court
inferior to a Principal Civil Court, or to a
High
Court
which
has no original
jurisdiction, or if an application were to be
made to a court which has no subjectmatter jurisdiction, such application would
be outside Section 42 and would not debar
subsequent applications from being filed in
a court other than such court.""

The conclusion of the Court is in
the following terms:

"25...(a) Section 2(1)(e) contains
an exhaustive definition marking out only
the Principal Civil Court of Original
Jurisdiction in a district or a High Court
having original civil jurisdiction in the
State, and no other court as "court" for the
purpose of Part I of the Arbitration Act,
1996.

(b) The expression "with respect
to an arbitration agreement" makes it clear
that
Section
42
will
apply
to
all
applications made whether before or
during arbitral proceedings or after an
award is pronounced under Part I of the
1996 Act.

(c) However, Section 42 only
applies to applications made under Part I if
they are made to a court as defined. Since
applications made under Section 8 are
made to judicial authorities and since
applications under Section 11 are made to
the Chief Justice or his designate, the
judicial authority and the Chief Justice or
his designate not being court as defined,
such applications would be outside Section
42.

(d) Section 9 applications being
applications made to a court and Section
34 applications to set aside arbitral awards
are applications which are within Section
42.

(e) In no circumstances can the
Supreme Court be "court" for the purposes
of Section 2(1)(e), and whether the
Supreme Court does or does not retain
seisin after appointing an arbitrator,
applications will follow the first application
made before either a High Court having
original jurisdiction in the State or a
Principal Civil Court having original
jurisdiction in the district, as the case may
be.

(f) Section 42 will apply to
applications
made
after
the
arbitral
proceedings have come to an end provided
they are made under Part I.

(g) If a first application is made
to a court which is neither a Principal
Court of Original Jurisdiction in a district
or a High Court exercising original
jurisdiction in a State, such application not
being to a court as defined would be
outside Section 42. Also, an application
made to a court without subject-matter
jurisdiction would be outside Section 42.

40. More recently in Sundaram
Finance Limited v Abdul Samad21, this
Court considered the divergence of legal
opinion in the High Courts on the question
as to whether an award under the 1996 Act
is required to be first filed in the Court
having jurisdiction over the arbitral
proceedings for execution, to be followed
by a transfer of the decree or whether the
award could be filed and executed straightaway in the Court where the assets are
located. Dealing with the provisions of
Section 36, Justice Sanjay Kishan Kaul
observed thus:"
11 All. National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
139

"14. The aforesaid provision
would show that an award is to be enforced
in accordance with the provisions of the
said code in the same manner as if it were
a decree. It is, thus, the enforcement
mechanism,
which
is
akin
to
the
enforcement of a decree but the award
itself is not a decree of the civil court as no
decree whatsoever is passed by the civil
court. It is the arbitral tribunal, which
renders an award and the tribunal does not
have the power of execution of a decree.
For the purposes of execution of a decree
the award is to be enforced in the same
manner as if it was a decree under the said
Code."

"16. The aforesaid provision,
however, applies with respect to an
application being filed in Court under Part
I. The jurisdiction is over the arbitral
proceedings. The subsequent application
arising from that agreement and the
arbitral proceedings are to be made in that
court alone.

17. However, what has been lost
sight of is Section 32 of the said Act, which
reads as under:

"32.
Termination
of
proceedings.-
(1)
The
arbitral
proceedings shall be terminated by the
final arbitral award or by an order of the
arbitral tribunal under sub-section (2).

(2) The arbitral tribunal shall
issue an order for the termination of CIVIL
APPEAL No.1650 of 2018 Page 17 of 21
the arbitral proceedings where-

(a) the claimant withdraws his
claim, unless the respondent objects to the
order and the arbitral tribunal recognises a
legitimate interest on his part in obtaining
a final settlement of the dispute,

(b) the parties agree on the
termination of the proceedings, or (c) the
arbitral tribunal finds that the continuation
of the proceedings has for any other reason
become unnecessary or impossible.

(3) Subject to section 33 and subsection (4) of section 34, the mandate of the
arbitral tribunal shall terminate with the
termination of the arbitral proceedings."

The aforesaid provision provides
for arbitral proceedings to be terminated
by the final arbitral award. Thus, when an
award is already made, of which execution
is sought, the arbitral proceedings already
stand terminated on the making of the final
award. Thus, it is not appreciated how
Section 42 of the said Act, which deals with
the jurisdiction issue in respect of arbitral
proceedings, would have any relevance.."

Consequently, in the view of the
Court, the enforcement of an award
through its execution can be initiated
anywhere in the country where the decree
can
be
executed
and
there
is
no
requirement of obtaining a transfer of the
decree from the Court which would have
jurisdiction over the arbitral proceedings.

13. Following the judgments of
Hon'ble Apex Court, similar view has also
been taken by the Allahabad High Court in
the matter of Madhyanchal Vidyut Vitran
Nigam Ltd.(Supra). Relevant paragraph of
the
said
judgment
is
being
quoted
hereinbelow:

"12.
From
the
judgments
delivered by the Counsel for the parties and
referred above, the Executing Court having
jurisdiction to execute the award can be
any court anywhere in the Country, where
the decree can be executed and thus in view
of the law expounded in the case of Cheran
Properties Limited (Supra), I have no
hesitation in holding that the objection of
the petitioner that the Court at Lucknow
had no jurisdiction loses its relevance and
is worthy of rejection. Thus, on the ground
140 INDIAN LAW REPORTS ALLAHABAD SERIES
of jurisdiction, the argument of the Counsel
for the petitioner cannot be sustained as
there is no error or infirmity in the order
impugned dated 10.03.2023 passed by the
Commercial Court, Lucknow and the same
is upheld."

14. In the matter of Bharat Petroleum
Corporation Ltd.(Supra) Allahabad High
Court has taken the very same view.

15. Now coming to the present case. It
is undisputed that the dispute is arising out
of acquirement of land of petitioners at
District Etawah, meaning thereby, property
and assets of the petitioners is situated at
there, therefore, even if the office of
petitioners is at Kanpur or arbitration award
was pronounced at Kanpur, that would
make no difference in filing of execution
proceeding
at
Etawah
in
light
of
interpretation made by the Hon'ble Apex
Court and the provision of CPC as well as
Act, 1996 occupying the field. Therefore,
this Court is of the firm view that
impugned order is very well in conformity
of the law laid down by the Hon'ble Apex
Court.

16. Now coming to the another
argument of the learned counsel for the
petitioners about the acquiescing the right
to raise objection about the jurisdiction.
Undisputedly against an award given at
Kanpur,
petitioners
themselves
have
preferred appeal under Section 34 of the of
the Act, 1996 before District Judge,
Etawah, therefore, petitioners acquiesce
their right and their objection is certainly
barred by Section 4 of the Act, 1996. He
cannot raise these objections at this stage.

17. Therefore, on both counts, I found
no illegality or infirmity in the impugned
order dated dated 05.08.2024.

18. Petition lacks merit and is hereby
dismissed.
----------
(2024) 11 ILRA 140
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 748 of 1983

Ram Krishna ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
N.K. Saxena, Ashok Kumar Dwivedi, Ram
Kishore Gupta

Counsel for the Respondent:
K.P. Shukla, A.G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections-161, 207 & 313 -
Indian Penal Code,1860 - Section 302 -
Arms Act,1959 - Sections - 25, 25(1)(a) &
25(1)(b) - Appeal - against conviction &
sentence - offence of murder - FIR - allegation
that, when the accused called the deceased son
of informant from his house and when he
reached at door he shot at and died on spot -
investigation - trial by session judge -
conviction & sentence - benefit of doubt -
Evaluation of evidence - court finds that, in the
light of finding of trial court its becomes
imperative to examine the witness on two
aspects - firstly motive & secondly the act
performed by the accused in commission of
crime - the motive behind the commission of
murder according to PW-1 (informant, father of
deceased) that despite reprimand the deceased
kept working with Bhagwan Singh with whom
he had animosity - convention is based solely
on the testimony of PW-1 and PW-3 - PW -1 in
stated that the incident was witnessed/seen by
Murlidhar, Ram Ratan, Ram Asrey, Chaman,
Rafiq, but filed to justify except Ram Asrey (PW-